Construction, Forestry, Mining and Energy Union v Glencore Mt Owen Pty Ltd [2015] FWC 7752

(#P46_3028) CFMEU v HWE Mining Pty Ltd [2011] FWA 8288 at [8]

(#P53_3574) [1938] HCA 44; (1938) 60 CLR 601 at 621-622.

(#P61_4716) (2005) 145 IR 285

(#P66_6485) See, too, CFMEU v HWE Mining Pty Ltd [2011] FWA 8288 at [12]

(#P69_6568) (2013) IR 231 159

(#P74_7285) McManus v Scott-Charlton [1996] FCA 1820; (1996) 70 FCR 16 at 30C

(#P79_7541) There was no dispute between the parties as to the relevance of each of these matters to the reasonableness of the direction to ban smoking.

(#P100_11177) Statement of Ashley McLeod dated 29 September 2015 at attachment AM3

(#P107_11651) WorkCover NSW Passive Smoking Guide at p3

(#P110_11741) National Occupational Health & Safety Commission Guidance Note on the Elimination of Environmental Tobacco Smoke in the Workplace at p1

(#P113_11934) NSW Cancer Council Recommendations for the Workplace at p3; National Occupational Health & Safety Commission Guidance Note on the Elimination of Environmental Tobacco Smoke in the Workplace at p2

(#P116_12258) NSW Cancer Council Recommendations for the Workplace at p4

(#P119_12498) WorkCover NSW Passive Smoking Guide at p2

(#P122_12864) s.19 of the WHS Act

(#P123_12947) s.17 of the WHS Act

(#P130_13282) s. 18 of the WHS Act

(#P187_18594) All underground mines are, of course, smoke free workplaces.

(#P194_18904) Mr Hunter gave evidence that the Ravensworth mine became smoke-free in August 2013, rather than in February 2013, as asserted by Mr McLeod. In my view, little turns on the precise date on which the Ravensworth open cut mine became smoke free. Accordingly, I do not need to determine this factual dispute.

(#P211_20966) Glendell, Mangoola, Ravensworth and Bulga

(#P224_22383) For example, smoking is prohibited in enclosed public places and certain outdoor public places.

(#P227_22729) See paragraphs [13]-[19] above

(#P240_24162) See, for example, statement of Kyle Hunter dated 3 September 2015 at [19] and statement of Ashley McLeod dated 29 September 2015 at [15]-[16]. In order to address this factor, I do not need to resolve the factual disputes between Mr Hunter and Mr Hassett as to what was said at particular meetings or discussions and whether Mr Hargraves was speaking on behalf of all employee representatives at a particular meeting.

(#P241_24712) See, for example, statement of Kyle Hunter dated 3 September 2015 at [19] and statement of Ashley McLeod dated 29 September 2015 at [15]-[16]

(#P244_25170) I note that in the related dispute concerning Thiess there are some 400 employees who are now subjected to the smoking ban across the Mt Owen Complex. There may be a significant number of those employees who smoke or would wish to have the option of smoking at work. The outcome of the current dispute may have an impact on the related dispute concerning Thiess.

(#P263_27713) Woolworth Ltd v Brown (2005) 145 IR 285 at [35]; Briggs v AWH (2013) IR 231 159 at [8]

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